Title I of the FMLA, 29 CFR 825.310(g), prohibits an employer from conditioning an employee's return to work from intermittent FMLA leave on the production of a fitness for duty medical certification. The validity of that prohibition was addressed by the court in Phipps v. County of McLean, No. 07-cv-1160, 2008 U.S. Dist. LEXIS 79714 (C.D. Ill. Oct. 7, 2008).

Phipps sought to return to work from approved intermittent FMLA leave after, in this instance, a six-week absence. He had taken approved FMLA leave on prior occasions due to the same serious health condition. When she sought to return to work Phipps was told that she must provide a physician's certification indicating that she was medically cleared to perform her job duties. She did not secure the certification. Phipps was subsequently terminated for failing to call or show up to work her scheduled shift.

In her FMLA suit, Phipps argued that her employer violated the FMLA by conditioning her return to work from FMLA leave on the production of a fitness for duty medical certification. She cited the prohibition on such certification in 29 CFR 825.310(g). The court rejected the employer's argument that absence was not intermittent because of its six-week duration. The court noted that 29 CFR 825.203(d) places not limit on the size of an increment of intermittent leave.

The court, however, accepted the employer's challenge to the prohibition on fitness-for-duty certifications during intermittent leave set forth in 29 CFR 825.310(g). Applying the analysis of the Supreme Court in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), the court found that 29 CFR 825.310(g) was an impermissible construction of the FMLA where the employee seeks to return from an extended intermittent absence. The court noted that the statute does not distinguish between intermittent and block leave with respect to employers' entitlements to fitness-for-duty certifications. The court went on to find that the absolute prohibition on fitness-for-duty certifications on an employee's return to work from an extended, intermittent absence fails to accommodate the legitimate interests of employers, one of the central purposes of the FMLA.

The court observed that the prohibition 825.310(g) contradicts the requirement in 825.214(b) that an employee must be able to perform all essential job functions on return from FMLA leave. An employer, because of the absolute prohibition, would not have the means of establishing that fact prior to accepting the employee's return from extended intermittent leave. The absolute prohibition, the court observed, is based on the DOL's unreasonable assumption that all employee's returning from intermittent leave --no matter how large the increment of intermittent leave taken or the reason for the leave, are automatically fit upon their return to work. Without medical evidence,the automatic right of return from intermittent leave "creates the potential of putting other employees, patients, customers and clients in dangerous situation" due to the overly optimistic self-assessment of an employee's ability to safely return to work from intermittent leave.

The court recognized that 825.310(g) was intended to protect employees who require intermittent leave from the burden of producing a fitness-for-duty certification for each and every increment of leave. The regulations, the court observed, "would be reasonable if the definition of intermittent leave were pared down to cover only employees who need to take one or two days, here and there, to treat an illness." Where, however, as in the case, an employee takes intermittent FMLA leave in large blocks, the absolute prohibition on fitness-for-duty certifications as a condition to return an employee to work is unreasonable.

The Court found that the employer did not violate the FMLA by conditioning Phipps return to work on the production of a fitness-for-duty medical certification. The court awarded summary judgment to the employer.

Comment: The decision invalidates 825.310(g) where the employee seeks to return from a lengthy block (several weeks) of intermittent leave. If the intermittent absence was of a relatively short duration, the court would likely enforce the 825.310(g) prohibition on fitness-for-duty certifications.

The case is also interesting because it references as support the DOL's proposal (73 Fed. Reg. 7876, 7922, 7985 (Feb. 11, 2008)) to allow fitness-for-duty certifications as a condition of returning an employee from intermittent leave. As proposed, the DOL would permit an employer to require an employee on intermittent leave to provide a fitness-for-duty medical certification every 30 days if an employee has used intermittent leave during that period and reasonable safety concerns exist. The DOL proposal is not effective, yet.

Title II similarly prohibits a federal employer from conditioning a civil service employees return from intermittent FMLA leave on the production of a fitness-for-duty certification. 5 CFR 630.1208(h). Unlike the DOL, OPM has not proposed making revisions to this requirement. As such, the Phipps decision should be of particular interest to agencies and civil service employees.